On The Front Lines

Rutherford Institute Asks U.S. Supreme Court to Affirm Landlord’s Right to be Free From Warrantless Searches of Private Residences

November 09, 2012

PHILADELPHIA, Penn. — Attorneys for The Rutherford Institute have filed a petition asking the U.S. Supreme Court to protect a Pennsylvania landlord’s right to be free from a warrantless home inspection. The Borough of Lansdowne has imposed the warrantless search as a prerequisite for acquiring a license to rent other properties, a licensing scheme which was recently affirmed by the United States Court of Appeals for the Third Circuit. Institute attorneys argue that the ordinance imposes an “unconstitutional condition” requiring citizens to either waive their Fourth Amendment right to be free from unreasonable searches and seizures or surrender their fundamental private property rights.

“The sanctity of one’s home should not be undermined for any reason, least of all because of bureaucratic policy-making,” said John W. Whitehead, president of The Rutherford Institute. “Homeowners, whether or not they own rental property, have every right to be free from unreasonable searches by government agents.”

On May 7, 2003, the Borough of Lansdowne, Penn., adopted Ordinance 1188, which requires anyone owning rental properties in Lansdowne to obtain an annual rental license. In order to obtain a license, a property owner has to arrange for a rental license inspection by Lansdowne’s Code Enforcement Division. The scope of the inspection includes the exterior and interior areas of the rental unit. Furthermore, in making such an inspection, a Lansdowne Code Enforcement Officer inspects any owner-occupied portion of a rental property, including its interior.

Michael Marcavage owns two properties in Lansdowne, each of which contains two units with separate entrances. Marcavage maintains his principal residence at one of the properties, in the unit on the ground floor, with the unit on the second floor leased to a tenant. Both units in the second house are leased. Believing the rental ordinance to be unconstitutional, Marcavage has never requested a rental license inspection. Moreover, he has repeatedly contacted Borough officials to express his objections to the rental inspection process—particularly the lack of a warrant requirement for the inspection, especially as it pertains to his personal residence. However, on September 30, 2009, Borough officials posted identical notices at both of Marcavage’s properties, one on the door of his personal residence and the other on the common exterior door of his fully rented property. The notices declared that it was “unlawful for landlord to collect any rent, use, or occupy this building” until a rental license was obtained. As a result, Marcavage felt compelled to find alternate lodging for himself until he could challenge the license and inspection requirements in court.

In October 2009, Marcavage filed a Fourth Amendment lawsuit in federal district court, challenging the ordinance. In October 2011, the district court ruled that the rental inspection ordinance did not violate Marcavage’s Fourth Amendment rights because the only penalty for refusing a rental inspection is denial of a rental license. In their petition to the U.S. Supreme Court, Rutherford Institute attorneys argue that the inspections of non-rental property constitute unreasonable governmental intrusion into one’s home. Affiliate attorney Mark Jakubik is assisting the Institute in defending Marcavage’s Fourth and Fourteenth Amendment rights.